Court of Appeal for Ontario

Date: 2018-04-12

Docket: C64451 and C64670

Panel: Hoy A.C.J.O., MacFarland and Roberts JJ.A.

Between

Mildred Cunningham Plaintiff (Appellant)

and

Paul Anthony Hutchings, Deanna E. Walsh, Lisa C. Betts and Maxime Daoust Defendants (Respondents)

Counsel

Bryan Fromstein and A. Fabio Longo, for the appellant

Nawaz Tahir and Evan Bawks, for the respondent Deanna E. Walsh

Heard: April 9, 2018

On appeal from: the order of Justice Flynn of the Superior Court of Justice, dated March 8, 2017, and from the order of Justice Gordon of the Superior Court of Justice dated September 14, 2017.

Reasons for Decision

[1] The appellant appeals the orders of Gordon J. dated March 8, 2017 and Flynn J. dated September 14, 2017.

[2] The order of Gordon J. dismissed her action for failure to file either a notice of appointment of counsel or of an intention to act in person within 30 days of the Order of Reilly J. dated November 16, 2016 removing her former lawyer as her counsel of record.

[3] The order of Reilly J. was deficient in that it did not include the text of rules 15.04(8) and (9) of the Rules of Civil Procedure, as required by r. 15.04(4). The importance of those provisions in an order removing a solicitor cannot be overstated. The obvious purpose is to bring home to the now unrepresented litigant the fact that she is required to give notice to the court and other parties to the litigation that she has either appointed alternate counsel or will be acting in person and that failure to do so can result in the court dismissing her proceeding or striking out her defence.

[4] Further, the appellant, who did not appear before Gordon J., had not been served with the respondent's motion in accordance with the Rules.

[5] Gordon J. gave no reasons for his order and we cannot ascertain why he ordered the most draconian remedy available in the circumstances of this case. Accordingly, his order cannot stand. We set aside his order and order that the appellant's action shall be dismissed if she fails to file a notice of appointment of counsel within 14 days.

[6] When the appellant learned of Gordon J.'s order she promptly moved before Flynn J. under r. 37.14 to set it aside, on the basis that she failed to appear through insufficient notice. Flynn J. concluded that her recourse was to appeal Gordon J.'s order to this court and dismissed her motion.

[7] It is unclear from Flynn J.'s reasons that he grappled with the threshold issue of insufficient notice within the meaning of r. 37.14. In our view, it was open to him to have granted the relief sought by the appellant. Accordingly, Flynn J.'s order is set aside.

[8] In view of this result, the costs order of Gordon J. is set aside and the costs order of Flynn J. is reversed so that the respondent Walsh is required to pay the appellant $5000. The costs of the appeal are to the appellant, fixed in the sum of $8500 agreed to by counsel. Both costs dispositions are inclusive of disbursements and HST.

"Alexandra Hoy A.C.J.O."

"J. MacFarland J.A."

"L.B. Roberts J.A."